Skip to main content

tv   David Keene and Tom Donnelly Discuss the Second Amendment  CSPAN  January 28, 2017 9:00am-10:02am EST

9:00 am
us of the same humanity you grant each other. >> go to booktv.org for the complete weekend schedule. .. he also served as chairman of the american conservative union. his new book
9:01 am
not be infringed: the new assaults on the second amendment". >> they constantly try to abridge it. >> thinking of something else. "shall not be infringed: the new assaults on the second amendment". obviously second amendment shaded contentious political policy debates. i would like to keep this on constitutional grounds. let's just start with the text of the amendment itself. taking out my national constitution center pocket constitution the second amendment reads a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. you borrow part of the text of the amendment in the title of your book. talk a little bit about that. >> the wording of the amendment is important. "shall not be infringed: the new assaults on the second amendment" is important because
9:02 am
the second amendment does not grant the people of the united states the right to keep and bear arms. it says that right shall not be infringed which is a recognition of the fact the right of self-defense which is what it really is preexists the american republic, preexists the writing of the constitution, many states including pennsylvania had in their constitutions prior to the writing of the american constitution the bill of rights already had an equivalent language and it goes back, the right of self-defense goes back to the old testament, the talmud and further is an important question because these rights, talk about the founders passout from natural law, these are not rights granted by the new
9:03 am
government, these are rights, the right to keep and bear arms, the right to a free press, the right to speak, all these things were rights they believed were inherent in the human condition which would have to prevent the government from infringing in the case of the right to bear arms. that part of the amendment and the way it is written is important. >> host: so much vibrant scholarship around constitutionalism just the opinion in the mcdonald case, the lives on state constitutional provisions to argue individual rights are deeply embedded in the american constitution. >> the whole question of the meaning of the second amendment was not studied until relatively recently. there were no decisions on it. i went to law school a long time ago and you would have thought that didn't exist, just passed
9:04 am
over. it wasn't until relatively recently that people began looking at the history. in a large sense justice scalia's theory of what the constitution means and men had great bearing because it drove people back to the district and as they studied the history they realized this common wisdom that the second american -- second amendment didn't mean much was wrong and as scholarship develops, at one point the folks who wanted a more restrictive view of the amendment went to harvard, he got back and said unfortunately the founders didn't, as we look at this we realize it is what the supreme court said it was in the heller case.
9:05 am
>> host: for the framers of the original founding, also after the civil war and reconstruction, talk about why this value was deemed fundamental? worthy of protection? >> it is in the american dna. this is a nation that was founded because citizens were armed. we sometimes forget the confrontation at the concord bridge came about because the british decided to confiscate the ammunition. the guns were in private hands, the ammunition was in a storehouse. if they could get at the powder they could disarm the american people. that resulted in the shot heard around the world in the revolutionary war. the settling of the west, all the things that went on in butte americans with a real sense that this is an important part not just of our history but what we
9:06 am
are. the second amendment came to symbolize more than guns, the right of self-defense, it came to symbolize a certain view of the responsibility of people to defend themselves and families and communities to rely on themselves, not on government. the nra which i headed for two years was founded after the civil war. interestingly because it was founded by several union officers in new york because it was their view the civil war lasted two years, at least, longer than it should have because union soldiers were not good with firearms. the reason for that is the union was recruiting and later drafting first-generation immigrants from europe in newly industrialized cities of the north. many of these people had no firearm tradition, citizens
9:07 am
weren't allowed to have firearms. in many cases, a union soldier didn't get a chance to fire a gun until he was in battle. a confederate soldier is the equal of three union soldiers but the union had five soldiers for every one of them. phil sheridan and ulysses s grant from the nra. it was their belief that the tradition was being lost because of the changing population and new americans as well as those been here but generations appreciated and understood firearms. >> the second amendment scholarship, other professors affiliated with one more
9:08 am
progressive. and the student of both of them in law school. and routing the fundamental nature of the individual -- the experience of newly freed slaves after the civil war. >> the history of gun control as opposed to gun rights came across in several ways, the first in control legislation came about after the civil war, it is another thing to give them guns. in the south in particular all these laws established, the newly freed black americans and part of the civil rights movement from then on involved with firearms is why condoleezza rice, former secretary of state was asked about the second amendment.
9:09 am
i am an absolutist on that question. neighbors stood on the porch around her house with shotguns and rifles in the clan march. that was the first wave of gun control legislation. then we had the banning of automatic weapons, visibility of the fellows with machine guns, then the crime bulge and riots of the late 60s which altered another wave of gun control and during that whole period things changed, attitudes changed because the second amendment was not only not mentioned but uncontroversial up to the 60s and the nra reflected that. john kennedy, roosevelt, members of the nra and other gun groups, there were no lobbyists, no
9:10 am
disagreement to speak of. what became known as the cultural war came out in the 60s, all of us in, not a shift of opinion but urban areas, it was anti-second amendment. we had a situation in which in 1968 the johnson administration put through congress the most restrictive firearms laws adopted in this country called the gun control act of 1968 and the polls showed most people supported gun control. a year or so later after johnson left office, some of the data, some of the research, one of the motivators for johnson, opposition to the second amendment was beginning to
9:11 am
become a liberal left mantra and one of the motivating factors, they were upset about it with him, it didn't work but he tried. a year later richard nixon's attorney general eliot richardson, the justice department, and manufactured sales of all handguns, everyone around at that time, if some of us were asked by 2015 the supreme court would have certified the reading of the second amendment to take and bear arms. they carried concealed handgun from their own protection we
9:12 am
would have laughed. and democratic powerful congressman, came to us and said you can train all the people you want, provide people technical information, do all the things you have been doing for 100 years, no one is going to have a gun. unless you step up and defend the second amendment will not mean anything to anybody. that changed things in the 1970s. since then everything has been reversed so that today, those of us who are strong second amendment believers were encouraged by a couple recent polls during the campaign that the least favored firearms on youngest americans, there has been real change in the way
9:13 am
people view these rights and the second amendment, one of the things that is interesting, since it is bill of rights day a couple years ago mitch daniels who was then governor of indiana gave a speech in which he said more people's attention is directed to the bill of rights by the national rifle association than any other group or people who turn to it. they read the whole thing and have greater appreciation for the importance of the constitution because particularly gun owners, second amendment friendly which comes up to in our calculations 55 million americans, base their belief in defense of their rights the bill of rights and that is important not just for the second amendment but the constitution, the bill of
9:14 am
rights. >> one of the criticisms, the nras, to approach the amendment is rooted in the preparatory clause. read that, put it on the table and hear the response to that. here is the preparatory clause. the security of a free state, the gun rights are tethered. >> dangerous to take what a word means in 2015 and assume the word means the same in the 1780s. that question was exhaustively researched by scholars and addressed by the court. the militia met everybody, met the people. it could have just said the people. in one sense the logic of that
9:15 am
argument, the so-called collective rights argument, the argument that was made in hell are against prevailing position was the second amendment does not in any way guarantee anybody has the right to a firearm for any purpose. they are only guaranteed states can have a militia. that made no logical sense historically or in the constructive sense and the sort of mirror would used in the states. of the militia was there to protect the federal government why a militia before there was a federal government. what basically happens, this is where the scholarship changed attitudes was this was an argument about words that didn't matter in the historic context, the word i suggested earlier do matter. >> this is a great time to explicitly put heller and mcdonald on the table. one of the odd things about the
9:16 am
second amendment. >> there weren't any decisions. >> the first 200 years, just starting with heller can you give us background who the challengers were? very briefly what the courts said? >> innocence the district of columbia banned the possession of firearms in a meaningful way for self-defense. dick heller, the plaintiff, was a security guard who carried a gun and lived in a dangerous neighborhood and start the right to have a gun in his home to protect himself. that was turned down. that went to the united states supreme court. the decision was the second amendment does in fact guarantee, protect the right of the american citizen in his home to have a handgun for self-defense purposes and that was the first time the court had said that. it was a fundamental right guaranteed by the bill of rights
9:17 am
and the district of columbia tried to get around that in various ways, but that only applied to federal outlays because the district of columbia is not a state. the second case which was in some ways even more important was the mcdonald case. when you go to law school and read an appellate case you don't know what it is about. about the whole thing. i sort of got really interested in that kind of thing some years ago when it was part of her book later. amity slays wrote a book about this, a big case that struck down as different nra during the depression. you would think this was a huge deal if you are reading the appellate case and three orthodox butchers in new york government says can't allow
9:18 am
their customers to pick up -- a different perspective on what is this about? to humanize it. the mcdonald case, which was in the legal sense about whether the second amendment rights should be incorporated in other parts of the bill of rights as it would apply in the federal government but what it was about was otis mcdonald. otis mcdonald was a black chicagoan who at the age of 14, the son of sharecropper from louisiana had migrated north. there was a lot of that in those days, he got a job, didn't have a high school education, got a job as a janitor, went off to the war, fought in the war, came back, bought a decent house, got his ged eventually, became head of the janitorial union locally. his kids were grown, his wife
9:19 am
had died and his neighborhood which had been a pretty decent neighborhood when he bought the house in the 1950s became the home of gangbangers and drug dealers so he applied to the city of chicago for the right to keep a gun to protect himself and they turned him down and he took that to the supreme court. he was also a student of history. he went to the supreme court because of his right and the right of other people, but he knew where those laws came from. and it was argued before the supreme court, represented after the civil war. the court found there was a big dispute what course to take, isn't relevant here but once that happened, the right became
9:20 am
live. i liken it to the first amendment in 1920, the right to free speech, portion of the first amendment. we knew it existed. there were not many court decisions up to that point. so you knew the bill of rights guaranteed the right to free speech but what did that mean? as justice scalia noted, every fundamental right is reasonable to restrictions. in the case of free speech, the outlandish supreme example, just because you have the right to free speech doesn't mean you can yell fire in a crowded theater. can you license a speech, the second amendment today is where the first amendment was in the 1920s it is a fundamental right.
9:21 am
what does that mean? there are cases winding their way through the courts that will lay out the parameters of what is or is not allowed in terms of reasonable restrictions. one of the problems we face legally is in the heller case, there was a complete and. the court didn't have to specifically, some would argue didn't happen specifically, to address the question of what level of scrutiny courts had to apply. maybe they shouldn't have had to, the courts are supposed to look at restrictions with what we call strict scrutiny. because they didn't have to answer that question, lower parts of the country say i never said you had to do that so we are not going to do it.
9:22 am
there are cases, assault weapons bands and semi automatic, that is reasonable in the constitution, the other is the question of what are known, what may issue concealed carry permits, and they look at the right to carry a firearm for self protection, what they call constitutional kerry states, there are 11 of those. estate filled with armed socialists. that view is if you are not a prohibited person, a felon, there's a list of people who are not allowed firearms. you don't have to get a permit.
9:23 am
most states are challenged, they are states in which if you apply for a permit to carry a firearm, the sheriff makes the decision if they don't want to grant it they have a reason. the burden is on the government to tell you you can't exercise the right. and may issue states the burden is on you to demonstrate to the government that you are to be able to carry a gun and they don't have to prove anything so they deny it. usually what happens is if you are from new york and a billionaire you get a gun and if not you don't get one. the legal right to bear is what gives the government the right to force a citizen to try to prove the citizen has the right to exercise the right guaranteed by the constitution. courts have come down differently. this will take a long time for the courts to sort of straighten
9:24 am
out. in maryland the governor backed off of gun-control packages. the governor added the price of a handgun would go to an additional $500 or so. he backed off because the legislators from the minority congressman said this is a case where you think people who live in montgomery county can afford this but we can't. they forced him to back off but that is similar to speech restrictions in some ways. what kind of attacks can you put on the right and when is it infringement of that queue >> host: putting meat on the bones, comparing the two analyses lower courts may make, strict scrutiny versus something less than that. take and assault weapon, the
9:25 am
most familiar. can you talk about how this strict scrutiny looks like versus something else? >> it is even more than that. if you read the heller decision, and justice scalia, let's just tell them what they can or can't do. there is one thing you cannot do. you cannot restrict or ban a firearm that is widely owned and commonly used for legal purposes. 5 million people own ar 15s. it is a semi automatic weapon owned by 5 million americans, the most used firearm for competitions, most used for rifle training, used for hunting, illegal in some states because too small caliber for
9:26 am
dear so it can't be used for that. it is used widely for self-defense purposes in the home because the court said you can't do that. under strict scrutiny you have to take a case, concealed carry law. if i said i wanted to deny you, challenge this, if the court looked at that with strict scrutiny, does that accomplish a legitimate purpose? is there another way to accomplish that and how does this work. in virginia this was the legislature stood up and stopped it in virginia last year. the attorney general decided by executive order and regulation that virginia would no longer recognize the concealed carry permits of people in 25 other states which was effective to 6 million people who travel through virginia. washington post reporter asked
9:27 am
at the press conference mister attorney general, can you name one law, one crime that would have been prevented or you think will be prevented because you adopt these? know i can't, that is not a point. if you are looking at that for me strict scrutiny point of view, that is the point and that is where you get into it so you have to look at it. the fact is going back to the so-called assault weapons, military weapon that can be used selectively, fired fully automatically, these guns are civilian semi automatic versions that look like the fully automatic. one of the reasons is my daughter spent ten years in the army, she did two tors of iraq and one in afghanistan. the fully automatic military
9:28 am
version she relied on to protect her and save her life the military and now a civilian in her home, got a semi automatic, she knows historically the best-selling, most used civilian guns in any stage of firearms development that are adopted by people who serve in the military. going back to what you are looking at with strict scrutiny, a lot of people -- the answer is no. according to the fbi each year more people are beaten to death in this country than are killed by shotguns, rifles, assault weapons, the whole thing, banning this for all these people accomplish a real purpose? if you are looking at it with strict scrutiny, though it doesn't which those questions become empirical questions in
9:29 am
many ways when you are looking at it that way, you can't just say it is a good idea, you have to prove it. one of the reasons second amendment people won most of these debates, the evidence is not there in terms of proposed restrictions. no real evidence that will do any good. if you are a federal judge with a body of law, the fact that you can't prove that you can accomplish it is a reason. >> just to test bounds of the second amendment, let's pick through a couple of other policy approaches. with the government's ability to ban prohibited purchasers of firearms, violent felons. >> there is an entire list of
9:30 am
people prohibited. the biggest gun seller in the united states is walmart. they sell most everything else too, why would they be the biggest gun seller? most people in their first firearm buy it at walmart or someplace like that but they had to do a background check. there is a list of 10, 12, 13 categories of people not allowed to purchase firearms. the most obvious is somebody who is a felon convicted of a felony, denied their firearms, anybody who has been adjudicated to be potentially dangerous is not allowed to purchase a firearm. they tried to expand this in many ways so a misdemeanor case and the like, my only problem, i met with a group called the prosecutors against gun violence
9:31 am
in new york, the folks, the bloomberg people said did i think there were circumstances under which you could permanently or temporarily banned someone, they said okay, we like to ban guns for anyone picked up for dwi and i said do you have empirical evidence to suggest somebody had one beer too many will shoot up a ball? know, but it would be a good idea. the problem is we have always been against treating people as members of groups. as an example going to the prohibited people are prohibited on mental grounds, during the clinton administration there was an attempt to put a lifetime ban on any military person which for
9:32 am
practical standpoint means you don't go to counsel but from a broader perspective we thought was depriving somebody of a constitutional right without due process of the nra got to congress and got that restricted. in most cases, we supported something, whether the two things we like, the two things we require our dirigible he centered and due process. for example some years ago when colorado adopted a concealed carry law, in most states decisions made by the sheriff on the grounds, historical grounds, or understanding of what is going on than others, we supported what became known as the naked man rule and it was thus named because the hypothetical was the sheriff get an application from a fellow who has never been adjudicated
9:33 am
mentally at all but is sitting naked wearing a hat talking to marshall's, he might decide maybe i should have this guy a gun. the law requires the right within 48 hours before the board and demonstrate he does have the right. and that is a reasonable type of thing. an individual exhibiting some potential for dangerousness you might want to take a look at. to simply say anybody with psychological counseling, most of the mentally ill, very small percentage, most of the mentally ill as perpetrators of it. one of the problems we always had, we always tried in one way or another who would be the bad
9:34 am
guy. there was a criminal chromosome great for a while. and -- got rid of the black and irish. you can't do it that way, not if you're dealing with fundamental rights of the american people. you have to have due process. and we agree with that. even in the most -- what looks to be the clearest case where
9:35 am
you are prohibited person is a felony. if you are gangbanger, used a gun and did these things, a ban on firearms for life makes sense but what about a 5 foot 6, in 1970, embezzled money, is that a dangerous individual? we don't get into that question, the nra defense criminals but the same question arises, the real question is dangerousness. you don't want to take those rights away from people who don't -- who are not likely to abuse them in a dangerous way. >> what about background checks? what bounds might the constitution play? >> you undergo a background check, after the 1968 gun control act was passed and there
9:36 am
are no definition. and so it was up to prosecutors to decide who are dealers and who is doing it illegally. a lot of prosecutions of people who give guns to grandchildren and gun collectors and finally the senate from indiana, chairman of the committee took a couple weeks, what are we trying to accomplish here? they came up with current rules and in the 1994, we asked for two things, one was an instant check system. if you go to buy a gun from a dealer, you went through all the databases and sometimes within seconds, sometimes within minutes mcgettigan or he can't. if approved for purchase those
9:37 am
records have to be destroyed. had to go to court because the justice department said we are not going to do that. had to go to court to do it. during the clinton administration that had to get funding, the government decided they have to be approved through the system, built by the system and they can't buy guns. we had to go back and do it again. now most guns purchased with a background check. if you sell me a gun and we know each other and you have no reason to believe a prohibited person there is no need for a background check, sell your car or whatever.
9:38 am
if you have reason to suspect that i may be prohibited you may be committing a crime if you do that but you came up with -- a lot of these things are mystical, the gun show loophole. nobody knows the exact number but the number of guns that don't have background checks are probably in the single digits in terms of percentage. most of the purchasers, if they don't know them, in the 90s when this first came up, we observed, by four or five different ways for organized county fairs. it is perfectly legal and for the bureau of alcohol, tobacco and firearms to go to organizers and say here's the deal.
9:39 am
at your show you should inquire who comes to the show whether it is private or not, have a background check. if you go to a gun show in virginia and state police, there are privacy laws. these are essentially mythological threats, during what we call a gunfight when i was president of the obama administration i was invited to the christian science monitor breakfast. 50 or 60 broadcast reporters and a guest they ask questions, i was to be working and somebody brought up the question of the
9:40 am
gun show loophole. how many reporters who write about this have ever been to a gun show? nobody raised their hand so i said okay, it just happens that next weekend in virginia, the largest gun show in this region. the editor passed around the sign-up sheet and i will take you there and you can look at this and if you want we can go to the nra or do what you want so you know what you are writing about. the poor guy called me the next weekend said nobody said i am done. why would you want to know about something you are reporting on? what we have is really non-evidence-based sort of almost religious feeling that society would be better if there weren't tons. john bolton did the forward to a
9:41 am
book and said it is the analog of people who thought in the 60s internationally if we just disarmed, would be a great place and other people would not be threatened by a said there would be no war. that didn't really work but there are people, almost quasi-religiously believe they can snap their fingers and firearms would disappear, no more rivalries or rapes or home break ins and the like and folks like that are not really, not really moved by evidence. that is part of the problem. the general question about what can be done, the nature of that battle makes it almost impossible to discuss anything reasonable. there are things that can be done. mental health system is one of
9:42 am
the major problems in this country, we overreact to everything. there are abuses of the mental health system in the 60s in 70s, we abolished it. all kinds of things you can do, but are not often discussed. >> thanks so much for questions from the audience. >> i was let filibustering, i just talked too much. >> host: here are questions from the audience and i will sprinkle my own in as we continue. first one, you put the word militia in historical context. will you do the same with the term well-regulated? >> guest: that meant people that understood, one of the functions of the nra after its founding in 1870 was to provide safety training. and hunter training and competition so people would be proficient, well-regulated in
9:43 am
the way they use their firearms, that is what that end. we don't use the same words but it is what we mean today, you don't -- we spend most -- it is interesting because this goes to the mission of the nra, if you ask somebody on the street or anybody in this audience, most of you would say what is the nra? it is a political group that fights for firearms rights. since the 1970s we have done that but we spend even today 8% or 9% of our budget on that. the rest of the money we raise, which our members, who benefit our members is safety training, firearms training, run competitive matches, professional police championships, all these kinds of things, historic mission of the nra. if there are people in the
9:44 am
audience by age who started hunting or boy scouts back in their younger days, got their training. we got something like 70,000 certified trainers in the country, a program which began, we are in a new century. the turn of the previous century, the boy scouts had a merit badge for shooting, don't know what that meant, they came to the nra and a set of standards for them and that is where our training came in. we think people who purchase and use firearms should do so safely and should know what they are doing. that is part of the overall mission. >> host: if the right to bear arms is a natural right why is it not valued in the same way by other democracies like the uk, france and germany?
9:45 am
>> most countries, this goes to the un treaty and the un denied there is any right to self-defense with a gun or any other purpose. not every country take that position but that is the position of the united nations and the position of australia, germany, britain. in britain have you have a gun legally for some reason, there is a home invasion and you use that gun to protect your family you are the one who goes to prison. that wright does not exist under the current laws of most countries was that wright has existed throughout history. after i leave to florida i was speaking to 800 principles of orthodox jewish tools about school protection, training and
9:46 am
ways to assess vulnerabilities of schools with and without firearms, some use firearms and some don't and i was because of the group i was talking to, looking back in the old testament, what we call the castle doctrine, if a burglar broke into your house at night, you had an obligation to defend your family. americans still believe that. a lot of countries don't. >> host: here is another -- >> guest: short answer is we are right and they are wrong. >> host: do you agree any gun regulation leads to a slippery slope banning guns and think individuals have a right to possess a soft gun? >> guest: individuals don't have a right to possess assault weapons. fully automatic weapons have been restricted in this country since the 1930s.
9:47 am
it is not fair to say you can't get one but i can tell you this. the license you need, the tax you have to pay the background check you have to undergo as far greater than any of the people who go to work in the trump administration. it has been illegal to manufacture assault weapons in this country since the 1960s, a machine gun you purchase is going to cost you upwards of 20 to $30,000 or $100,000. some years ago the late frank lautenberg in new jersey who had claimed that the nra was facilitating sale of machine guns at gun shows to terrorists decided there needed to be a law against this. they took up an entire day of debate in the united states senate. the nra did do the research,
9:48 am
still enterprising reporters in this country, did a piece that he researched the question, and since 1939 two people have been killed in this country, one by a debt collector and one by a policeman with legally acquired machine guns. you can't buy an assault weapon, a semi automatic, if you don't know, the difference might look to somebody, most people who have them don't think they are ugly. that question, that was the second part. >> host: do you agree any gun regulation leads to a slippery slope to banning guns? >> guest: that is the ultimate goal. this year, the folks who want what the president cause that is called common sense gun restrictions as he is a believer in the second amendment, he would never been guns. he ran and in the 2012 campaign
9:49 am
to say i will never take your gun, never take your pistol or your shotgun. this year the president of the united states and mrs. clinton said there were two models in their mind for how to deal with guns in a commonsense way. great britain and australia. in australia, mrs. clinton cited the fact that australia -- and in australia, it was a mandatory basis and adds we are very simple, refused to turn in your gun, go to prison, the government ought a full-page ad in the australian newspapers, mrs. clinton's idea of a commonsense way of regulating guns although she might not -- full-page ads of three people, a
9:50 am
picture from the waist up, prison showers and said you don't turn in your gun, this could be your future. those are the people who hold that up as the model of how to deal in this country to abolish firearms. does any reasonable restriction on firearms result in that? no. what has to be realized is a lot of people would like to accomplish that. people who believe in the second amendment have to be very cautious about it. when the gun control act of 1968 passed ted kennedy said this is the first step on the way to abolishing firearms. was he ready to do that? did he do it? no. is there a path from step one, step 2 to step 3? yes there is a path. will we go down that path?
9:51 am
we hope not. far more people today support the second amendment in the 1960s, 70s and 80s, the incarnation of attorney general, deputy attorney general have given a speech in which our goal has to be to demonize guns and the way we do cigarettes, we have to make it culturally unacceptable for anyone to own a firearm to get rid of. what he has learned since is guns are not cigarettes. between then and now, more people are buying firearms, more people are using them. the biggest people for buying guns today are women. that is the biggest growth, the nra, the biggest growth of competition. i used to say it didn't happen until a few years ago those manufacturers are not making pink guns because they like pink, they are making them
9:52 am
because they know their customers. >> host: we are running out of time. i would like a chance to project ahead a little bit. we have a new president, one of his first tasks will be naming a replacement to the supreme court. let's project ahead and say 20 years in 2036. 3 to four conservative justices. >> appointing one won't do it. the question is what kinds of restrictions will be found to be reasonable? one, whoever the president appoints is not going to be antonin scalia who had the advantage not only of a solid view of the constitution that was an amazingly engaging guy and was able to put together and
9:53 am
convince others. others on the court might have voted for anthony kennedy, did vote the majority, might not do the same on these other questions. the first appointment protects what has been done. the second appointment will determine the outcome of a lot of the cases we talked about earlier, they reached the court and i expect there will be more than one appointment and that will happen. i think at some point we get a court that says you have to employ strict scrutiny and looking at these restrictions. that would be the court goal but a lot of these decisions are made by lower courts and those appointments are important and the real questions, the real
9:54 am
fight on these questions will take place in the state courts, those are the people who do the regulation. congress is not going to adopt it. that is where i would see that situation. >> strict scrutiny ends applying in that situation, what regulations do you see falling by the wayside? >> i could see -- you don't know. six justices, you still wouldn't know. i would think the challenge to concealed carry could be at risk. from the standpoint of those states. the jurisdictions that found it reasonable to band the ar 15 and other jurisdictions would be upheld where they can't do that. most of the existing regulation -- i spent a lot of time -- law
9:55 am
students think more clearly than we do. actually courts might be less likely, addressing a georgetown class, one of the students said if this is a fundamental right, most of the anti-gun legislation or laws imposed by cities that are primarily occupied by minorities and those minorities are the most at risk people from criminals and can't protect themselves like mister mcdonald. on disparate impact are they constitutional in those cities? never thought of it that way. it is a creative argument.
9:56 am
you don't know what is going to happen but the battle over guns, both sides feel strongly. as it becomes clear the court makes it clear second amendment is not going away. it is not going to be rewritten to do anything you want, could be a place where you start discussing what is reasonable and that would be a healthy development rather than a healthy development. there will be other things. mister bloomberg and his friend spend a lot of money. don't know what he spend this year but he spent $60 million and tried to come up with other creative ways to come after the second amendment, you still have the machinations, the current
9:57 am
treaty, under the obama administration sent to the senate last friday won't be modified. the senate could do two things, treaties live in perpetuity. it was negotiated in the 1970s. it is voted down, driving a stake through its heart. or withdraw the american signature. there are all kinds of international -- under that treaty, and don't sign it, one of the requirements that enforce it. it is seen as a human rights abuse. the un commission on human rights has taken the position that a country that allows
9:58 am
citizens to own firearms - technically it is conceivable under the treaty that countries that produce the finest sporting arms of the world, turkey, spain, italy, germany, would not be allowed or could be argued they shouldn't be giving firearms to hunters and shooters in the united states because you are a bad guy in terms of the un. there are all kinds of things. there is now a group of big law firms, some of their partners, we can find ways around this, we can sue all these people. that was the big controversy between hillary clinton and bernie sanders. bernie sanders voted not to
9:59 am
allow lawsuits against gun companies that were not manufacturing bad products but to say guns were banned and they never expected to win those but expected to break them and they are looking at that. when you hear this talk, somebody said these lawyers are like cigarette lawyers, the difference is cigarette companies had money. don't know how many times winchester -- these are companies that have big names and much smaller capacity, much smaller persons from which you can get money. >> host: for those hungry for more information about the second amendment, shameless plug to check out national constitution center's interactive constitution, constitutioncenter.org. ..
10:00 am
ten years ago he came to the constitution center and walked out and said he's an american citizen because the constitution center. [applause] thank you for the discussion. definitely check out the buck
10:01 am
and again merry christmas. [inaudible conversations]

5 Views

info Stream Only

Uploaded by TV Archive on